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2014 DIGILAW 255 (CAL)

Lina Ghosh v. Indian Oil Corporation Ltd.

2014-03-21

ARUN MISHRA, JOYMALYA BAGCHI

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Judgment : Joymalya Bagchi, J. The intra court appeal is directed against the judgement and order dated 16th September, 2013 whereby the learned Single Judge dismissed the writ petition challenging the decision of the respondent Indian Oil Corporation (IOC for short) to issue Letter of Intent dated 16th August, 2013 in favour of the respondent no. 5 for setting up LPG distributorship at Kalichack, Malda. The appellant had applied for LPG distributorship in response to an advertisement published in the newspaper for “appointment of LPG distributor in West Bengal and Sikkim” published in the year 2007. Pursuant to the selection process, the appellant was awarded 82.78 marks and was placed in the first position in the panel. Upon objections being filed before the respondent authorities, a revised panel was prepared wherein the appellant remained at no. 1 position in the panel while respondent no. 5 Ayesha Hossain was ranked second with 81.50 marks. The appellant received a letter dated 16th September, 2009 from Deputy General Manager, LPG, West Bengal State Office whereby the appellant was informed that her candidature has been cancelled and Letter of Intent would not be issued in her favour. The respondent authorities had cancelled the candidature of the appellant contending that the appellant could not be treated as “owner” of the showroom, as claimed by her in her application, as she had submitted only a notarized agreement for lease of 20 years in respect thereof. Such decision of the respondent IOC was challenged by the appellant in a writ petition being W.P. No. 18078 (W) of 2009 before this Court. Another empanelled candidate, namely, Tania Pervin (who had not been empanelled in the revised panel) also challenged the aforesaid selection process in W.P. No. 18498 (W) of 2009. Both the writ petitions were heard analogously and were disposed of by a learned Single Judge of this Court by a common judgement and order dated 9th September, 2011. By the said judgement and order, learned Single Judge set aside the impugned order dated 16th September, 2009 cancelling the candidature of the appellant and directed the respondent IOC to issue Letter of Intent in favour of the appellant. The said order of the learned Single Judge was appealed before a Division Bench of this Court by respondent no. 5 in F.M.A. No. 1497 of 2011. The said order of the learned Single Judge was appealed before a Division Bench of this Court by respondent no. 5 in F.M.A. No. 1497 of 2011. After hearing the parties, the Division Bench in its judgement and order dated 17.09.2012 held that it was incorrect on the part of the respondent IOC to cancel candidature of the appellant on the premise that she had claimed herself as “owner” of the premises. The Bench held that as the appellant had submitted a notarized agreement for lease of 20 years in respect of the premises. Hence, it could not be said that she had claimed herself as “owner” of such premises. The Bench, however, noted that though the appellant had an unregistered agreement for lease of 20 years in respect of the premises, she could not be treated a lessee in law for such period as she did not possess a registered long term lease deed. In view of the aforesaid findings, the Bench remanded the matter for fresh consideration by respondent IOC observing as follows : “Therefore, the writ petitioner Smt. Lina Ghosh cannot be said to have a 15 years lease to her credit. We may hasten to add that the authorities themselves have created the confusion. We already have indicated above that the authorities themselves insisted upon a lease agreement. Another mindless act on the part of the Indian Oil Corporation Authority, is the following general instructions, appearing at page 62 of the Paper Book, which reads as follows : “Notarised Agreement to sale or lease (15 years minimum) from the owner. Date of agreement has to be on or before the date of application. Proof of ownership etc.” Therefore, notarized agreement for lease is a document, which can safely be said to have been required by the authorities themselves and that is what the writ petitioner submitted. The writ petitioner may have entered into an agreement for lease for 20 years and on the basis of such agreement she may have been inducted into the shop room. All that is now required is a registered lease document of lease to make her in law a lease for 20 years in respect of the showroom/shoproom for which an opportunity should be granted. The issue is accordingly answered. The last issue, formulated above, is the domain of the Executive. All that is now required is a registered lease document of lease to make her in law a lease for 20 years in respect of the showroom/shoproom for which an opportunity should be granted. The issue is accordingly answered. The last issue, formulated above, is the domain of the Executive. It is for them to decide whether the writ petitioner is entitled to 7 or 10 marks and that question is best left to them for a decision in accordance with law. It may be pointed out that the writ petitioner is in a far better position than a candidate who can arrange a suitable premises, who according to the norms is entitled to 5 marks. Whether she would be awarded 7 marks or 10 marks is a question, which, we think in fairness, should be left to the authorities. In the result, the impugned order in so far as the same relates to the impugned order dated 16th September, 2009 is upheld. But the direction to the authorities to issue a letter of intent in favour of the writ petitioner is set aside. The authorities shall consider the matter including the marks to be awarded to the applicant in accordance with law. The appeal is, thus, partly allowed.” Pursuant to such direction, the appellant filed a subsequently registered lease deed of 20 years in respect of the showroom before respondent authority. The respondent IOC thereafter considered the case of the respective parties including that of the appellant and the respondent no. 5 and by order dated 20.11.2012 decided to award 7 marks to the appellant instead of maximum 10 marks. Resultantly, the respondent no. 5 was ranked 1st in the panel with 82.72 marks while the appellant ranked 2nd therein with 79.78 marks. Thereafter respondent IOC issued Letter of Intent dated 16th August, 2013 in favour of the respondent no. 5. Such decision was assailed before this Court in W.P. No. 26844 (W) of 2013. Resultantly, the respondent no. 5 was ranked 1st in the panel with 82.72 marks while the appellant ranked 2nd therein with 79.78 marks. Thereafter respondent IOC issued Letter of Intent dated 16th August, 2013 in favour of the respondent no. 5. Such decision was assailed before this Court in W.P. No. 26844 (W) of 2013. By impugned judgement and order dated 16th September, 2013, learned Single Judge dismissed the writ petition on the premise that the Division Bench had left discretion open to the respondent IOC to award either 7 marks or 10 marks to the appellant in accordance with law and that the decision of the respondent authority in awarding 7 marks cannot be said to be so arbitrary or whimsical so as to be interfered with in judicial review. Hence, the present appeal at the behest of the appellant. Mr. Moitra, learned senior advocate appearing for the appellant submitted that the Hon’ble Division Bench in its order dated 17.09.2012 had given opportunity to the appellant to submit a registered lease deed of 20 years in respect of the showroom to demonstrate that she was a long term lessee thereof. Pursuant to such leave, registered lease deed was submitted by the appellant. In spite of that, respondent IOC illegally denied 10 marks to her and placed respondent no. 5 at the top of the panel. Senior counsel strenuously argued that such conduct of respondent IOC was not only contrary to law but in gross derogation of the directions in the said judgement and order of the Division Bench. He further submitted that if 10 marks were awarded to his client, the latter would have secured first position in the panel. He, accordingly prayed that the Letter of Intent issued in favour of the respondent no. 5 be set aside. Mr. Yadav, learned advocate appearing for the respondent IOC submitted that admittedly registered lease deed of 20 years submitted by the appellant was not in her possession on the date of submission of her application. He drew our attention to the terms of the advertisement which inter alia provided that necessary documents in support of the claim of the applicant must be in his/her possession on the date of submission of such application. A subsequent registered lease deed executed in favour of the appellant, therefore, would not entitle her to the highest score of 10 marks. A subsequent registered lease deed executed in favour of the appellant, therefore, would not entitle her to the highest score of 10 marks. He submitted other similarly circumstanced candidates had been awarded 7 marks, like the appellant. Awarding 10 marks to the appellant would, therefore, amount to hostile discriminate of others and would have in derogation to the terms of advertisement as well as the schedule for allocation of marks contained in clause 14.1 of IOC Brochure for selection of Indane Distributors, June, 2007 (Brochure for short). Mr. Dutta, learned advocate appearing for the respondent no. 5 submitted that his client having secured highest marks was rightly issued the Letter of Intent. He further submitted that the order of the Hon’ble Division Bench cannot be read as a mandate upon the Oil Company to award 10 marks to the appellant. The moot question which therefore falls for decision is whether the respondent IOC was justified in awarding 7 marks to the appellant in the instant case. The advertisement for appointment of LPG Distributor in the State of West Bengal and Sikkim in 2007 was followed by an addendum. Portions of the said addendum relevant for the instant case are set out hereinbelow : “General instructions mentioned below should be submitted along with application Item No. Instructions Supporting documents : Applicants to provide them at the time of verification 13B1 In case applicant has suitable land for construction of showroom in his name or in the name of member of his family until then response should be ‘Yes’ so strike off ‘No’ and provide details in case the applicant does not have suitable land in own or in the name of members of family until, then response should be ‘No’ so strike off ‘Yes’ and move to 13B2. Registered Sale Deed/Mutation/Gift Deed/Lease (15 years minimum) agreement and government record etc. Date of agreement/mutation has to be before or on the date of application. Registered Sale Deed/Mutation/Gift Deed/Lease (15 years minimum) agreement and government record etc. Date of agreement/mutation has to be before or on the date of application. Consent from the family members in form of Notarized affidavit is required 13B2 In case 13B1 is ‘No’ then only 13B2 should be filled in case applicant has a firm offer of sale/lease from any owner of a suitable land for showroom or showroom, then response should be ‘Yes’ so strike off ‘No’ and provide the details in case the applicant does not have firm offer from then response should be ‘No’ so strike off ‘Yes’ and move to 13B3 Notarized agreement to sale or lease (15 years minimum)from the owner. Date or agreement has to be on or before the date of application Proof of ownership etc. ………………………………………………………………. Note : “2. Applicant should provide only that information in the application against various items for which applicant is in possession of supporting documents in original as on the date of submission of application. Failure to present these documents in original will result in cancellation of selection due to submission of false/unsupported information.” Relevant portions of Clause 14.1 of Brochure providing for the scheme of allocation of marks on various parameters to the respective applicants is set out hereinbelow : 14.1 Allocation of marks on various parameters based on documents will be carried out as per the information given in the application. Parameter Sub Head Description Max-Marks Evaluation Capability To provide infrastructure and facilities (as on the date of application Suitable land/shop for showroom Owns@-Having Clear title/Registered Sale-Deed of the suitable land/ shop for showroom 10 Based on the information & statement given the application OR Firm offer @@ - Having agreement to purchase suitable land/shop for showroom 7 Based on the information & statement given the Application OR can arrange 5 Based on the information & statement given the application @ “Owner means having clear ownership title of the property or on long leased (minimum 15 years) in the name of family member as defined in eligibility criteria/multiple distributorship norm duly supported by documents.” @@ “Firm offers means an agreement on stamp paper for sale or lease (minimum 15 years) between the applicant and the owner duly supported by document.” Respondent IOC by its earlier decision dated 16.09.2009 cancelled the candidature of the appellant as she claimed ownership of the showroom in terms of 13(B)1 (supra), although she submitted only a notarized agreement for lease of 20 years for such premises. The Division Bench did not approve such decision of the respondent IOC of outright cancellation of the candidature of the appellant holding that it was erroneous to conclude that she was claiming “ownership” of the showroom as she had submitted a notarized agreement for lease in respect thereof. The Bench however opined that such notarized unregistered agreement did not make her a lessee in law for 20 years of the said premises. In that backdrop, the Bench observed all that was required to make the appellant a long term lessee in respect of the showroom was a registered lease deed, and she ought to be given an opportunity in that regard. The Bench, however, did not decide as to whether highest score of 10 marks ought to be awarded to her in the event she subsequently procured such registered lease deed. It categorically left such issue open for decision by the respondent IOC in accordance with law. In view of the aforesaid facts, we find it difficult to accept the submission of Mr. Moitra that a right to be awarded the highest mark had accrued in favour of the appellant in view of the observations made by the Division Bench in the earlier appeal. In view of the aforesaid facts, we find it difficult to accept the submission of Mr. Moitra that a right to be awarded the highest mark had accrued in favour of the appellant in view of the observations made by the Division Bench in the earlier appeal. We find no express direction upon the respondent IOC to award highest marks to the appellant on submission of the subsequently executed registered lease deed. On the contrary, the Bench had in no uncertain terms kept it open for IOC to decide whether to grant 7 or 10 marks to the appellant in accordance to law. The words “in accordance with law” would not entitle the appellant to any better credit than what she would otherwise receive under the terms of the advertisement and the schedule for allocation of marks on various parameters as provided in clause 14.1 of the Brochure. Allocation of 7 marks to the appellant in the light of the conditions contained in the advertisement and the schedule provided in clause 14.1 the Brochure appears to be wholly justified. Admittedly, the appellant did not have a registered lease deed for 15 years or more in respect of the showroom on the date of submission of her application. She merely possessed a notarized agreement for lease of 20 years on such date. Note 2 in the addendum to the advertisement, inter alia, stipulated that applicant should provide only that information in the application for which applicant is in possession of supporting documents in original as on the date of submission of application. In the light of Note 2 of the aforesaid addendum, the appellant cannot be said to be one who had a registered lease deed of 15 years or more on the date of submission of application entitling him/her to claim maximum score i.e. 10 marks in terms of clause 14.1 of the Brochure (supra). On the other hand, on such date she only had a firm offer for long term lease and was rightly awarded 7 marks. The observation of the Division Bench relating to grant of opportunity to her to subsequently obtain a registered lease deed for 15 years or more cannot be read to mean that she ought to be given the maximum score of 10 marks. The observation of the Division Bench relating to grant of opportunity to her to subsequently obtain a registered lease deed for 15 years or more cannot be read to mean that she ought to be given the maximum score of 10 marks. Such observation cannot be read in isolation but must be construed in the light of other directions in the said judgement, namely, leaving the discretion to award appropriate marks open for decision by the respondent authority. That apart, we find much force in the submission of the learned counsel appearing for IOC that other candidates who were similarly circumstanced with the appellant had also been awarded 7 marks. The appellant could not have been treated differently from others and no such indication to give favourable treatment to the appellant can be culled out from the decision of the Division Bench of this Court which categorically indicated that the marks be awarded to the appellant by the respondent IOC “in accordance with law”. It is settled law that rules of selection cannot be subsequently changed. To permit the appellant to secure 10 marks on his subsequently procuring a registered lease deed for 15 years or more would be amounting to relaxing rules of the game in her favour after the game is played. Hence, the impugned decision of the respondent IOC cannot be said to be arbitrary, whimsical, contrary to law or in derogation of any observation made by this Court in its judgement and order dated 17.09.2011 in FMA No. 1497 of 2011 necessitating interference in judicial review. The impugned judgement & order of the learned Single Judge is upheld. Accordingly, the appeal fails and is dismissed. Interim order, if any, stands vacated. Parties shall bear their own costs.